For legal advice for your specific situation you are strongly encouraged to retain an experienced and qualified attorney. If you are interested in retaining The Seneff Law Office, please contact us at greg@senefflaw.com. Below are some sources of general information.
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Here are some common questions posed by music artists and songwriters and Greg's answers. (Note that nothing stated here should be considered legal advice and that some information may be time sensitive, so be sure and obtain specific legal advice from a qualified and experienced attorney for your situation).
"How do I copyright my song?"
The short answer to the question is that when you write an original song and put it in a fixed form you have already "copyrighted" it. What you are really asking is how does one go about registering that copyright.
If you have created an original song and placed it in (what the Copyright Act calls) a "fixed form" you already have a copyright. A fixed form can be a hand written music notation on staff paper, an audio recording in any format (audio cassette, burned on a CD or recorded on a hard drive, for example), video recorded onto a camcorder, etc. As long as what you have placed in that fixed form is original, capable of being perceived by others, and contains the melody and lyrics, you have created a copyright.
However, in order to fully protect the copyright, you should register the song with the Copyright Office. Registration can be made through a "PA" (which stands for "performing arts") application available on the Copyright Office website. The cost is $45.00 for the paper application or $35.00 for an online registration (fees are subject to change). Collections of an unlimited number songs may be registered all on one application provided the authorship and the ownership percentages of all of the songs are identical. The Copyright Office is working to make online registration of collections available. Keep checking their website.
Note that to register the sound recording of the song (usually a fully produced, mixed and mastered recording) you should use the "SR" (which appropriately enough stands for "sound recording") application which is a separate copyright. If the ownership of the underlying song and the sound recording are all identical you may register both the song and the sound recording of that song on the SR application. (This situation is usually only true for individual artists or groups that completely share in the ownership of the songs they record.)
"Can I register my song or recording by mailing a copy of it to myself?"
No. Only registration with the Copyright Office will serve to fully register - and protect - the song or recording. Mailing a song or recording to yourself (the so-called "poor man's" copyright - sorry ladies) might possibly serve as evidence that a song existed on or before the postmark date, but in order to file a legal action for copyright infringement a copy of the copyright registration with the Copyright Office must be attached to the legal complaint. If a complaint is filed without the copyright registration - from the Copyright Office - the court will dismiss the case.
"How can I protect my band name?"
Depending on the type of use of the band name (live performances, recordings, or merchandise) it is considered a trademark (for the sale of physical goods such as CD's and t-shirts) or service mark (for services such as live performances). However, the trademark laws are very complicated and complete protection of a trademark is far more costly, time consuming and frustrating than the registration of copyrights. However, a band's name is it's brand and can be very valuable. Since almost all recording and distribution agreements require that the artist warrant that it is the sole owner of the band name it is important that steps be taken to protect the name.
For example, suppose a band signs a recording agreement which warrants that the band name "XYZ band" is solely owned by that band. The record company spends tens of thousands or hundreds of thousands of dollars to produce a record, create artwork for the cover, and distributes the recording to every "big box" store in the country. A week or so goes by after the release and some lawyer in Podunk. USA contacts the record label with a "cease and desist" letter informing the label that his client band has been using the name in a local bar for 25 years. Since distributors cannot keep product out of stores or towns, if the 25-year old band refuses to sell their band name to the newer group the record label must recall all of the albums, destroy or cover over all of the artwork, recreate new artwork and distribute the album back out to the public (assuming the label does not decide to drop the band and shelve the release). Who do you think pays for the recall, new artwork, shipping and damages paid by the record label? Yep. XYZ band pays every penny including legal fees and costs. So, registering the band name is a good idea, and far cheaper than trying to defend against a conflict. (Nothing is guaranteed, however, so be sure to have an attorney do it the right way the first time so the odds of a conflict are low.)
(It should be noted here that all bands should have written agreements that address the disposion of band property - including the band name - if a member leaves or the band breaks up. Without such an agreement ALL of the former members might well be able to use the band name without restriction. That's why there have been multiple groups composed of former members of famous groups which all use the same name. The Temptations, for example.)
"Do I really need a written agreement with a producer? After all, he/she is my best friend."
Absolutely, positively EVERY production by a third party (including individual members of a band) - even a friend, minister, rabbi, mentor, sister, brother, mother or father should be covered IN ADVANCE by a written production agreement. The terms of even a simple production agreement are too long to go into detail here. Suffice it to say that it is possible that the producer could have co-ownership of the sound recording copyright without an appropriately worded production agreement signed by everyone BEFORE any production work begins. I have been asked to step into to situations where even long-time friends threatened to sue each other over ownership, royalties, fees, costs, and possession of master recordings because there was no written agreement in place. One situation (for an independent artist no less) ran into thousands of dollars of legal fees in an attempt to resolve a situation with a "world famous" producer. Don't make the mistake of trying to "save money" by ignoring what the law says about this area. You will almost certainly pay more attorney fees later trying to solve a problem that could have been handled for far less by an experienced attorney before production began.
"Won't hiring a lawyer scare off a potential [record label, producer, publisher, manager]?"
Not if the party you are negotiating with is legitimate and reputable. If they have a written contract they are offering you they probably hired a lawyer to write the terms so that the agreement benefits them. Why wouldn't you hire your own (experienced) attorney to make sure that the agreement is what you intend for it to be - a mutually beneficial document?
If the party you are negotiating with pulled their agreement off the internet that's all the more reason why you should have an experienced attorney review it. Most agreements posted on the internet are not well drafted.
"I was told that the agreement I was offered was a standard contract and that everyone signs it. Aren't they all the same?"
No. There are certainly typical provisions that appear in some types of agreements. However, there is no such thing as a "standard" agreement used by all publishers or all record companies. In fact, it is not uncommon for different divisions of the same companies to have different contracts. A record company with 3 different record labels might have 3 different contracts. Most publishers of any size have at least 3 publishing entities (one each for ASCAP, BMI & SESAC) and some have many, many more than 3. It is not unusual for companies to have provisions that they customize for each individual situation.
Again, the language from one contract to the next might look very similar, but there is NO SUCH THING as a "standard" contract.
"Should I join ASCAP, BMI or SESAC to be my performance rights organization?"
The legal answer is "it depends." Each organization has it's own strengths and weaknesses. I represent clients who are members or affiliates of each of those organizations. I also know individuals who have switched their affiliation from one to another for different reasons. I recommend that you go to their websites and research them thoroughly. You might also seek out songwriters who are members of each one for their input.
You should note the following caveats: (1) the method to join each performing rights organization (PRO) is different, be sure you join as both a songwriter and publisher or are otherwise paid for both songwriting and publishing royalties unless you are signed to a third-party publisher; (2) you must be invited to join SESAC; (3) registering your songs with the PRO is NOT registering the copyrights for those songs with the Copyright Office and you should also register with the Copyright Office (unless you are signed to a third-party publisher); and, (4) if you register a song with the PRO after it is publicly performed (radio, concerts, juke boxes, etc.) you have a limited time to claim any royalties that might be otherwise due you (the rules for each PRO are different, so be sure to ask your representative what happens in your situation).
"Should I sign up with SoundExchange?"
SoundExchange is a performance rights organization (PRO) for the digital broadcast (NOT downloads) of music. Digital broadcasts are those on XM and Sirius satellite radio and by Internet radio "webcasters." "New" legislation requires that if music is digitally broadcast a royalty must be paid to the owner of the copyright, the featured artist and the background singers and background musicians. The royalties, therefore, are paid to the performers of the music and the owners of the sound recording copyright. (Performance royalties are also due the songwriters and publishers of those songs, but they are collected and distributed by ASCAP, BMI, & SESAC, much as performance royalties for "terrestrial" radio broadcast royalties are collected and paid.)
SoundExchange is a non-profit organization originally founded by the Recording Industry Association of America (RIAA), but which is now under the management of a separate board of directors. (It should be noted that the SoundExchange board members are largely record label-affiliated individuals, however.)
There is a large controversy regarding the interests and management of SoundExchange and the amount of royalties which should be paid by digital broadcasters, particularly webcasters. Since the royalty to be paid is based on the number of listeners to the broadcast, even small independent broadcasters could be saddled with enormous royalty liabilities which they might not be able to pay, simply because they are popular. While there should not be too much debate regarding whether broadcasters should pay to use music to draw listeners to their broadcasts, the amount to be paid, if too high, might well force the small webcasters out of the market and result in homogenization of what is available. (Meaning that only the big broadcasters will be able to afford the royalties and that will result in fewer listening choices.)
As a result of the controversy an organization has sprung up as an advocate for the interests of webcasters. SaveNetRadio is lobbying hard to lower the cost of royalties for digital broadcasts owed by webcasters so that "mom and pop" Internet music broadcasters are not forced out of business.
It behooves every artist, record label, background singer, background musician, and Internet broadcaster to thoroughly research the issues and proceed accordingly. While I personally believe that artists whose music is played via a digital broadcast should be compensated, I also believe that the more musical variety available via Internet radio the better. If music choice is left solely up to the "big" digital broadcasters the listener will suffer.
"Why aren't recording artists paid a royalty when their songs are played on regular (terrestrial) radio?"
In most of the rest of the world, they are. There has been legislation introduced to require terrestrial radio stations and networks to pay royalties to the record labels and artists for the terrestrial broadcast of recorded music in the United States. However, the radio stations and networks' position is that the broadcasts are "free" promotion for those recordings, and that the record labels and artists already benefit from the broadcast of their music through increased sales. (Let's ignore for the moment that for years various record labels, and radio promoters hired by various labels, have paid to have songs played by the radio stations - which is illegal unless it is disclosed to the public. It is commonly called "payola." For more information on that, read "The Hit Men.")
The legislation is currently being debated widely. I personally am in favor of it with one very LARGE caveat. As proposed, "religious" and "talk" radio stations would not have to pay ANYTHING. While "small" radio stations and even public radio stations would have to pay a reduced flat annual fee ($5,000.00 and $1,000.00 respectively) fee, religious broadcasters would not have to pay to broadcast music. It should be noted that those same broadcasters raise money from listeners (and some are commercial stations) with the assistance of the music that draws in those very listeners.
If you are a "religious" recording artist or own a recording label that releases "religious" recordings, I strongly encourage you to contact your Senator or Representative to make your thoughts known regarding the pending legislation. (If you would like to contact your local legislators you can look them up here.)
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